Bramhall v. Hurban ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1069
NORTH CAROLINA COURT OF APPEALS
Filed: 3 June 2014
LOUCRETIA BRAMHALL,
Plaintiff
vs. From Gaston County
No. 10-CVS-911
JOHN HURBAN aka MARCUS
BRAMHALL, JEFFREY LIVINGSTON,
JDL ENTERPRISES, INC. and
CHOICEPARTS.NET,
Defendants.
Appeal by Defendant from judgment and order entered 28
January 2013 by Judge Nathaniel Poovey in Gaston County Superior
Court. Heard in the Court of Appeals 19 February 2014.
Stott, Hollowell, Palmer & Windham, L.L.P., by Randal S.
West and Aaron C. Low, for Plaintiff.
Law Offices of Sanjay R. Gohil, PLLC, by Sanjay R. Gohil,
for Defendant Hurban.
DILLON, Judge.
John Hurban a/k/a Marcus Bramhall (“Defendant Hurban”)
appeals (1) from a judgment entered upon a jury verdict awarding
compensatory and punitive damages in favor of Loucretia Bramhall
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(“Plaintiff”); and (2) from an order denying his motion for a
new trial. For the following reasons, we dismiss in part and
affirm in part.
I. Factual & Procedural Background
On 22 February 2010, Plaintiff filed a complaint in Gaston
County Superior Court alleging, inter alia, that she and
Defendant had operated a pizza equipment supply business, Pizza
Equipment Supply, Inc. (“PESI”), but that Defendant had not been
active in the management or operations of PESI since before
2008; that she had filed an action for divorce from Defendant
Hurban in October 2009 and had since been granted “exclusive
possession of [the] property upon which [PESI’s] offices are
located”; that Defendant Hurban and the other Defendants –
Jeffrey Livingston, JDL Enterprises, Inc., and ChoiceParts.Net –
had “engaged in a joint venture and/or business agreement
whereby they [sought] to directly compete with [PESI]”; that a
break-in had occurred at the PESI offices on or about 9 January
2010, at which time computer equipment and Plaintiff’s personal
credit card were removed from the offices; that Defendant Hurban
had acknowledged that he had taken part in removing the computer
equipment; and that, with respect to the aforementioned credit
card, Defendants had “caused to be charged against the credit of
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the Plaintiff the sum of $20,500.00” without Plaintiff’s
authority or consent. Supported by these allegations,
Plaintiff’s complaint asserted claims against each Defendant,
jointly and severally, for larceny, conversion, and conspiracy,
seeking both compensatory and punitive damages.
On 3 June 2010, Defendant Hurban filed an answer denying
liability. None of the other Defendants filed an answer or
other pleading or motion in response to Plaintiff’s complaint.
Rather, Defendant Livingston sent an email to Plaintiff’s
counsel stating that “the credit card in question shows
[Defendant Hurban] as an authorized user. . . . Please remove
me and my company from this obvoius [sic] divorce dispute[.]”
Plaintiff’s counsel forwarded Defendant Livingston’s email to
the Gaston County Clerk of Court.
The matter came on for a jury trial in Gaston County
Superior Court on 13 November 2012. Prior to the start of the
trial, Plaintiff moved for an entry of default as to Defendants
Jeffrey Livingston, JDL Enterprises, Inc., and ChoiceParts.Net
(hereinafter, the “Defaulting Defendants”), citing their failure
to file responsive pleadings. The trial court granted
Plaintiff’s motion for entry of default in open court,
indicating that “the entry of default is without prejudice to
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Defendant [Hurban] . . . with respect to any of the allegations
in the complaint that refer to Defendants collectively” and that
the court would “enter that default without prejudice to
severing those particular portions of the complaint that deal
with all defendants instead of just those separate Defendants.”
The next day, counsel for the Defaulting Defendants moved
to set aside the entry of default. The court, however, denied
the motion, concluding that all Defendants had been properly
served with process and that Defendant Livingston’s email to
Plaintiff’s counsel did “not constitute an answer pursuant to
the rules and [was] not a response.”
On 16 November 2012, the jury returned a verdict awarding
Plaintiff $21,471.45 in compensatory damages and $1,850,000.00
in punitive damages. Thereafter, Defendant Hurban and the
Defaulting Defendants each moved for a new trial and, in the
alternative, requested that the punitive damages award be
reduced pursuant to N.C. Gen. Stat. § 1D-25(b) (2011), which
generally limits the punitive damages award against a particular
defendant to the greater of three times the amount of
compensatory damages awarded or $250,000.00. By judgment and
order entered 28 January 2013, the trial court denied
Defendants’ motions for a new trial, but reduced the punitive
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damages award to $250,000.00 per Defendant. Defendant Hurban
now appeals.
II. Analysis
A. Motion to Set Aside Entry of Default
Defendant Hurban raises a number of arguments in contending
that the trial court erred in its entry of default as to the
Defaulting Defendants and further erred in denying the
Defaulting Defendants’ motion to set aside the entry of default.
The Defaulting Defendants, however, have not appealed. See
N.C.R. App. P. 3 (mandating that the notice of appeal “specify
the party or parties taking the appeal”). Moreover, “only a
‘party aggrieved’ may appeal a trial court order or judgment,”
Bailey v. State, 353 N.C. 142, 156, 540 S.E.2d 313, 322 (2000),
and Defendant Hurban cites no authority demonstrating his
standing to appeal as an aggrieved party on behalf of the
Defaulting Defendants under these circumstances. See N.C.R.
App. P. 28(b)(6) (providing that “[t]he body of the argument . .
. shall contain citations of the authorities upon which the
appellant relies”). We note the trial court’s indication that
the entry of default was “without prejudice to Defendant
[Hurban] . . . with respect to any of the allegations in the
complaint that refer to Defendants collectively” and that, as
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discussed further infra, the trial court revised its original
jury instructions to clarify the nature of Defendant Hurban’s
liability as compared to that of the Defaulting Defendants.
Defendant Hurban’s purported appeal on behalf of the Defaulting
Defendants and his arguments in support thereof are,
accordingly, dismissed. Gaskins v. Blount Fertilizer Co., 260
N.C. 191, 195, 132 S.E.2d 345, 347 (1963) (appeal dismissed
where party was “not aggrieved by the judicial order entered”).
B. Motion for a New Trial
Defendant Hurban further contends that the trial court
erred when it denied his motion for a new trial. We disagree.
Although Defendant Hurban fails to set out the relevant
standard of review as required by our Appellate Rules, see
N.C.R. App. P. 28(b)(6) (providing that “[t]he argument shall
contain a concise statement of the applicable standard(s) of
review for each issue, which shall appear either at the
beginning of the discussion of each issue or under a separate
heading placed before the beginning of the discussion of all the
issues”), the governing standard is as follows:
A motion for a new trial pursuant to Rule 59
is generally addressed to the sound
discretion of the trial court. Appellate
review of the trial court’s ruling on a Rule
59 motion is strictly limited to the
determination of whether the record
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affirmatively demonstrates a manifest abuse
of discretion by the judge. A manifest abuse
of discretion must be made to appear from
the record as a whole with the party
alleging the existence of an abuse bearing
that heavy burden of proof. An appellate
court should not disturb a discretionary
Rule 59 order unless it is reasonably
convinced by the cold record that the trial
judge’s ruling probably amounted to a
substantial miscarriage of justice.
Langwell v. Albemarle Family Practice, PLLC, 203 N.C. App. 666,
669-70, 692 S.E.2d 476, 480 (2010) (quotation marks and
citations omitted).
Rule 59 provides that a new trial may be granted in the
case of “[e]xcessive . . . damages appearing to have been given
under the influence of passion or prejudice[,]” N.C. Gen. Stat.
§ 1A-1, Rule 59(a)(6) (2011), and, though not specifically
citing this provision on appeal, Defendant Hurban contends that
the trial court erred in denying his motion for a new trial on
grounds that “there was sufficient evidence . . . that the
jury’s punitive damages award was given with passion and
prejudice and was vastly disproportionate to the evidence
presented at trial.” Defendant Hurban points to the jury’s
punitive damages award, which he asserts was “more than eighty-
four times” the compensatory damage award of $21,471.45.
Regarding this award, we note that the trial court reduced it
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significantly to the statutory maximum of $250,000.00. See N.C.
Gen. Stat. § 1D-25(b). Defendant Hurban also points to Samons
v. Meymandi, 9 N.C. App. 490, 177 S.E.2d 209 (1970), in support
of his position on this issue. However, Defendant Hurban cites
to this case only generally, without attempting to draw any
specific parallels between the circumstances of that case and
the case at hand. In Samons, we stated that the jury erred by
awarding punitive damages based on the specific facts of that
case, but that the error “was cured, however, when the trial
judge set the verdict aside.” Id. at 496, 177 S.E.2d at 212-13.
Likewise, in the present case, any error by the jury in awarding
punitive damages “more than eighty-four times” the compensatory
damages amount was cured when the trial court reduced the award.
Accordingly, this argument is overruled.
Defendant also cites Plaintiff’s testimony concerning “her
failed marriage to [Defendant], her failed business
relationships with [Defendant], as well as pending criminal
investigations by federal authorities for crimes that
[Defendant] was never charged with committing” as outside the
scope of this matter and as indicative of Plaintiff’s “attempt
to prejudice the jury” against him. Even assuming arguendo that
portions of Plaintiff’s testimony were not relevant to her
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conversion claim – for which punitive damages are recoverable in
North Carolina, see, e.g., Mace v. Pyatt, 203 N.C. App. 245,
256-57, 691 S.E.2d 81, 90 (2010) – the record reveals ample
relevant evidence supporting the trial’s court decision to deny
Defendant a new trial on this basis. For instance, the evidence
indicated that Defendant broke into the place of business of his
former wife and business partner (Plaintiff), stole her computer
and credit card, and attempted to convert her funds to his own
foreign bank account using the stolen credit card. In light of
this evidence and the jury’s compensatory damages award, we
cannot say that the trial court abused its discretion in finding
that there was the requisite evidence of an “aggravating factor”
– fraud, malice, or willful or wanton conduct – to sustain the
punitive damages award. See N.C. Gen. Stat. § 1D-15(a) (2011)
(providing that punitive damages are awardable “if the claimant
proves that the defendant is liable for compensatory damages and
that [fraud, malice, or willful or wanton conduct] was present
and was related to the injury for which compensatory damages
were awarded”).
Finally, we turn to Defendant Hurban’s contention that he
was prejudiced by a portion of the trial court’s jury
instructions, which he asserts “had the natural tendency to more
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likely than not confuse the members of the jury as to whether or
not all four defendants were liable for conversion, conspiracy,
and punitive damages.” Our review of the record reveals that
Defendant Hurban did not object to the complained of
instructions and has thus failed to preserve the issue for
appeal. N.C.R. App. P. 10(a)(2) (providing that “[a] party may
not make any portion of the jury charge or omission therefrom
the basis of an issue presented on appeal unless the party
objects thereto before the jury retires to consider its
verdict”); Lumley v. Capoferi, 120 N.C. App. 578, 582, 463
S.E.2d 264, 266 (1995) (concluding that plaintiffs failed to
preserve issue for appellate review where “plaintiffs had
several opportunities to object to the proposed special
instruction before the jury retired, but failed to do so”).
Even assuming arguendo that Defendant had preserved this issue
for appellate review, after careful review of the instructions,
we discern no prejudice to Defendant – certainly none that would
amount to reversible error – inherent in the jury instructions
at issue. Rather, they reflect a reasonably tailored effort to
clarify the court’s prior instructions and, at least in part, to
distinguish Defendant Hurban’s liability from that of the
Defaulting Defendants.
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III. Conclusion
For the foregoing reasons, we (1) dismiss Defendant
Hurban’s contentions relating to the trial court’s entry of
default and denial of the Defaulting Defendants’ motion to set
aside the entry of default, as Defendant Hurban has failed to
demonstrate standing to appeal from those rulings; and (2)
affirm the trial court’s decision to deny Defendant Hurban’s
motion for a new trial.
DISMISSED in part; AFFIRMED in part.
Judges BRYANT and STEPHENS concur.
Report per Rule 30(e).